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Racial vilification laws in Australia

Overview

In 1989 New South Wales became the first Australian state to pass legislation outlawing racial vilification. By 2001 the Commonwealth and the majority of Australian states and territories had followed suit, suggesting a broadly held view that racism was a sufficiently serious problem in Australian society to warrant the imposition of legislative restrictions and sanctions on conduct which generated ill-feeling against particular racial or ethnic groups. And yet, throughout this period the legal regulation of racial vilification has been controversial, with each new legislative reform initiative prompting heated debate.

Regulating Racism provides a comprehensive examination of the history and current operation of federal, state and territorial racial vilification laws in Australia. Based on detailed analysis of relevant reports, legislation, parliamentary debates, statistical data, and judicial and quasi-judicial decisions, it reviews the range of approaches to the legal regulation of racial vilification which have been adopted in this country, including the creation of:

criminal offences;

statutory torts; and

grounds of human rights complaint.

The book addresses a number of key questions about the origins and operation of racial vilification laws. Why were different legislative models chosen? What are the implications of those choices for victims of racial vilification? What impact have free speech 'rights' and values had on the approach which Australian law-makers have adopted towards the regulation of racial vilification? How have racial vilification laws been applied and interpreted by human rights agencies, prosecuting authorities, tribunals and courts?

Regulating Racism evaluates the strengths and weaknesses of the various approaches to the legal regulation of racial vilification which have been utilised to date in Australia. It makes an important contribution to our understanding of the role and limits of racial vilification laws in a democratic multicultural society.

Reviews

A thought-provoking and informative critique of Australia’s racial vilification laws, Regulating Racism avoids an overly legalistic approach. The book combines detailed information with ideological debate, within a broader social analysis of the need for racial vilification laws in a multicultural society. - Law Institute Journal (Victoria), June 2003

This is an interesting and topical book. One of its most important themes is the difficulty of striking a balance between the principle of free speech and the duty of avoiding racial vilification. Separate chapters are devoted to the respective approaches of the Commonwealth, New South Wales, Western Australia and South Australia. In tracing the history of racial vilification, the author mentions the fact that the targets have included indigenous peoples and the following communities: Irish, Italian, Jewish, Vietnamese and Chinese. One example or racial vilification arose between the Greek community and the Macedonian community; the Macedonia Weekly Herald newspaper alleged that “the Greeks have brought to mankind everything that is today considered to be evil”. The New South Wales Anti-Discrimination Tribunal decided that this could be justified as being in the public interest. The High Court has decided that “a narrow constitutional guarantee in relation to political discourse is implicit in the Australian constitution”. There are several examples of cases, where the Human Rights and Equal Opportunity Commission has submitted to Federal Courts, complaints of vilification of aboriginal and other communities; nine out of 25 cases were successful, in one of which $55,000.00 damages were awarded. It is made clear, in connection with cases of racial vilification, that it is not necessary for the complainant to prove intention to incite hatred. In New South Wales four out of six cases in which racial vilification was proved related to aborigines. In Western Australia “boat people” were described in a pamphlet as “human trash”; this piece of vilification was the subject of court proceedings. Tasmania is represented by the case of the Executive Council of Australian Jewry and Jones v Skully, in which Commissioner Nettlefold’s decision that the complainant had no standing was over-turned on appeal by the Federal Court. Patriotism and nationalism are not mentioned. The extensive “footnotes” are collected at the end of each chapter. Certain sections of the relevant legislation are frequently referred to; it is a pity that these sections are not set out verbatim. - Tasmanian Law Society Newsletter, December 2002

Table of Contents

The Emergence of Racial Vilificaton Laws in Australia
Human Rights Complaint-Based Regulation: The Commonwealth Approach
Setting the Precedent for Australian Racial Vilification Laws: Human Rights Complaint-Based Regulation in New South Wales
The Criminalisation of Racial Vilification: Western Australia
Regulation by Statutory Tort: South Australia
The Current Shape of Racial Vilification Laws in Australia